Although the Washington Supreme Court upholds the Common Law theory of breach of promise to marry, most states have abolished it by statute. One reason for their abolishment is that breach of promise to marry suits could cause a party to get married and then seek a no-fault divorce in order to get around the suit.

Breach of promise to marry may still be brought, however, using camouflage (i.e. fraudulent inducement to have sex, failure to disclose venereal disease, unjust enrichment to recover an engagement ring, etc… ).

Chaachou v. Chaachou (page 6)

Two people, married or not, who engage in the conduct of a business, may bring an action under partnership laws for equitable distribution of the partnership's property. Sometimes, this may result in a more equitable distribution than a divorce.

Common Law marriages were abolished by statute in 1968, however, common law marriages entered into prior to 1968 and common law marriages valid where entered were not effected.

Presumption of Marriage – an evidentiary rule which presumes that two people of different sexes who live together are having sex and therefore are married.

McGehee v. McGehee (page 24)

Mrs. McGehee brought this action for the dissolution of a business partnership with her husband. As a partner, she was entitled to 50% of the partnership's property and did not need to rely on the discretion of the Chancellor, as in a divorce action.

Owens v. Owens (page 35)

The marriage relationship does not change all legal relationships between the parties to the marriage.

FS § 708.08 – A married woman can dispose of her property as if she were unmarried.

FS § 708.09 – A married woman may contract or form a partnership with her spouse as if she was unmarried.

Comments

It is important for the practitioner to be familiar with many different areas of law, and to know when to use what action to facilitate the best result for the client.

Ante-nuptial Agreements: Safeguard to Deliberation, Recognition of Party Autonomy or Inappropriate Intrusion into Marital Ethics

Reynold v. Reynolds, 85 Mass 605 (1862)

A woman who lies about her virtue has not committed fraud because this is one way for a woman to become virtuous again.

A woman who lies about being pregnant has committed fraud.

KEY: Fraud necessary for Annulment must "go to the essence of marriage" (i.e. procreation).

Ante-Nuptial Agreement From Transcript in the Case of Ball v. Ball (page 41)

This contract would be void as against public policy if it were entered into today.

In general, most ante-nuptial agreements are followed and cases challenging them are dismissed.

Note: An ante-nuptial agreement can make something "essential to the marriage" that would not normally rise to that level.

Ball v. Ball (page 44)

Annulments are based on the common law, not on statutes. Furthermore, no jurisdictions in the United States have abolished annulment by Statute (note: FS § 61 applies only to divorce, not to annulment).

An annulment must be based on ground which existed prior to the marriage.

Void marriage – A marriage which is considered to be invalid from its inception (i.e. no marriage ever existed).

Voidable marriage – A marriage which is valid until challenged.

A voidable marriage is cured if it is ratified. One method of ratification is to have intercourse after the fraud has become known.

Posner v. Posner (page 50)

An ante-nuptial agreement that provides for the facilitation of divorce is against public policy because one essential of marriage is the intention to be married for life.

An ante-nuptial, however, that helps to regulate the breakup of a marriage is not against public policy, but any provisions pertaining to children are unenforceable.

Bad Man's Law – Justice Holmes said, "The law regulates bad men because it is the minimum legal standard for acts that may be totally moral."

Comments

Del Vecchio standards for a ante-nuptial agreement to be allowed to regulate a divorce – (1) the agreement must be fair and reasonable in its provisions, (2) it must provide full and frank disclosure of all the assets, and (3) parties must have an adequate knowledge of each others wealth.

Belcher Standard for an ante-nuptial agreement to be allowed to regulate a divorce – (1) the agreement must be fair and reasonable in its provisions, (2) it must provide full and frank disclosure of all the assets, and (3) there must be consideration.

Florida Probate Code § 732.702 says that a post-nuptial agreement must provide full and adequate disclosure of all assets, but an ante-nuptial agreement does not need to give such disclosure.

The Movement of the Progressive Societies Has Hitherto Been a Movement from Status to Contract

Ponder v. Graham (page 74)

This case stands for the position that marriage is a contractual relationship.

Article 3, § 11(15) of the Florida Constitution prohibits special legislation for divorce

Maynard v. Hill (page 78)

Marriage is within the police power of the state to regulate.

Ryan v. Ryan (page 83)

This case cites both Ponder v. Graham and Maynard v. Hill and therefore stands for the proposition that a marriage is both a contractual relationship and a status relationship at the same time.

The Florida Supreme Court held that the contractual rights of marriage are inchoate rights and could therefore be regulated by the police power, subject to judicial review.

Therefore, although the legislature enacted the no-fault divorce statute, the court may still determine if there is sufficient evidence to show that the marriage is irretrievably broken.

Although fault has been abolished by the no-fault divorce statutes, fault can still be brought into the case as a means of answering the question, "Why is the marriage irretrievably broken."

Comments

A marriage, valid where entered, is valid everywhere in the United States unless it shocks the conscience of the state.

An ante-nuptial agreement must be in writing in Florida.

Marital Failure and the Distribution of Losses

Joint Investment in Education

Morgan v. Morgan [I] & [II] (pages 95 & 98)

An ante-nuptial may be used to determine what property will go into the calculation of alimony.

O'brien v. O'brien (page 98)

A license to practice medicine was considered to be marital property and therefore may be taken into account when determining alimony or may be subject to equitable distribution.

Mahoney v. Mahoney (page 103)

An education was held to be a personal achievement, not marital property and not part of the calculation of alimony or equitable distribution.

Comments

In Florida, a medical license would not be marital property, but it may be considered for equitable distribution.

Career Building – Individual or Shared Gain?

Thompson v. Thompson (page 115)

The value of a Professional Association can be valued by determining the value of its tangible assets plus goodwill.

The value of the assets of the business plus goodwill not attributed to the talent of the husband could be considered when determining marital property.

Elkus v. Elkus (page 117)

A New York court included the wife's talent as an opera singer because her husband expended considerable efforts in advancing her career.

In Florida, the court would only consider the wife's career in determining the equitable distribution.

Marriage Partnership as a Liability

Kennedy v. Nelson (page 133)

A marital relationship does not give rise to a presumption of agency between spouses.

Connor v. S.W. Florida Regional, 668 So. 2d 175 (FL 1995)

A spouse does not have a support obligation to either spouse.

Northampton Brewery Corporation v. Lande (page 135)

UPA § 7 – Mere co-ownership does not presume a partnership. The plaintiff would have to show other evidence.

Determining What Assets May be Divided as Marital Property

In re Marriage of Grubb (page 140)

A pension should be considered in determining marital property.

FS § 61.075 – In Florida, a pension would be a marital asset, but it would be up to the Judge to determine whether the spouse will get it.

Smith v. Lewis (page 144)

Attorney was liable under the theory of malpractice because he hadn't done adequate research to determine whether the husbands pension was a marital asset.

Informal Marriage: State Withdrawal or State Intrusion?

Common Law Marriage

Substantive Versus Procedural Marriage

Marriage by Presumption (page 161)

The presumption of marriage was not abolished by FS § 741.211, which abolished common law marriage in Florida.

A Common law marriage can only be ended through a divorce.

A presumption of marriage can be rebutted.

Campbell v. Christian (page 161)

South Carolina is a Common Law marriage state

A Common Law marriage that is not ended by divorce will cause a subsequent marriage to be bigamy.

Common law capacity to marry is 12 for a girl and 14 for a boy.

Religious and Ethnic Factors

Parkinson v. J. & S. Tool Company (page 172)

Court held that good faith reliance on a priest's counsel was enough to legitimatize a marriage for the purpose of worker's compensation.

The court allowed for a de facto marriage to satisfy the worker's compensation statutes even though no de jure marriage existed.

De jure – In Law

De facto – In Fact

Florida may use Marriage by estoppel to prevent one party from bringing the no marriage defense if that party procured the marriage under false or misleading pretenses.

Presumptions are like bats… …they flitter in the twilight and disappear in the bright light of day.

Other Informal Marriages for Limited Purposes

Putative Marriage

The "putative spouse" is a concept of Spanish Law. In Florida, a court would use estoppel to protect the innocent spouse.

Sousa v. Freitas (page 191)

Husband changed his name and then served first wife under wrong name and at wrong address (i.e. bad service of process). Because of the Extrinsic Fraud, the outcome of the case was later found to be void.

Intrinsic Fraud – Fraud in the proceedings which result in a certain outcome will make that outcome voidable.

Extrinsic Fraud – Fraud which prevents the other party from getting their day in court results in the outcome being void.

Marriage by Estoppel

Mason v. Mason (page 206)

Wife #1 was estopped from asserting that husband's marriage to wife #2 was bigamy, against innocent wife #2, because she failed to assert her rights for over 20 years.

Non-Marital Cohabitation

Trial Marriage, Substitute for Marriage, or Holdover Marriage

Peck v. Peck (page 213)

Marriage requires an intention, by both parties, to be bound for life. Evidence, even in the form of a cohabitation contract that shows that the requisite intention was missing will cause the marriage to fail.

Marvin v. Marvin [I], [II] & [III] (pages 214, 227 & 241)

A contract for non-marital cohabitation is valid unless it is explicitly based on sex. A case based on contract cohabitation, however, is a simple breach of contract case, not an action in equity like a divorce.

These contracts for cohabitation must be proved allegation by allegation and will usually fail unless they are in writing.

Note: Although sex is not a defense to contract, it often rears it head in contract cohabitation cases.

Property Transaction, Specific Performance, and Suit to Quite Title

Tyranski v. Piggins (page 275)

Substantial performance may take the place of a writing in defending against a statute of frauds defense to an express contract cohabitation.

Elden v. Sheldon (page 290)

Contract Cohabitation is not marriage and one party does not have a right to loss of consortium.

Medley v. Strong (page 300)

Contract Cohabitation is not marriage and one party does not have a right to loss of consortium.

Klein v. Klein

Husband and wife may sue each other as if unmarried in matters of property

Waite v. Waite, 618 So. 2d 1360 (FL 1993)

Inter-spousal immunity is abolished all together.

Toward Equality in Marriage

The Common Law Background: Reducing State-Imposed Inequality and Dependency

Identity

Davis v. Roos, 326 So. 2d 229 (FL 1st DCA 1976)

Married Women may retain their names when married.

Note that 1st DCA has jurisdiction over Tallahassee which results in statewide implications.

Stuart v. Board of Supervisor (page 325)

Conflict of Laws requires one state to honor their sister states position on whether a wife must take her husband's name.

In Florida, the common law rule that you can take any name has been abrogated by the name change statute.

Sydney v. Pingree (page 330)

In Florida, the burden is on the state to show that allowing parents to give their child any name unreasonably burdens the state.

Sexual Behavior Outside of Marriage

Fadgen v. Lenkner (page 401)

Although interference with the marital relationship has been abolished as a tort, the competent attorney will look for other relationships running with the marriage, such as partnership, and sue on interference with it.

Warren v. State

A man can rape his own wife.

Bowers v. Hardwick (page 407)

There is no fundamental right to homosexual sodomy.

Genitals plus (mouth or anus) equals Sodomy

Powel v. State

Georgia Supreme Court held that Georgia's Sodomy statute was unconstitutional as applied to oral sex between consenting heterosexual adults in the privacy of their own home.

Note: Bowers v. Hardwick is still good law and continues to be precedent.

State Role in Promoting or Moderating Gender-Role Stereotypes

Wives and Mothers in the Labor Force

Application of Ellen Gaulkin (page 428)

Restriction on non-judicial spouse from holding office is relaxed absent a showing of impropriety or encroachment upon the judiciary.

ABA Formal Opinion #340 (page 432)

A husband and wife may represent opposing parties only after full and frank disclosure to clients and confidentiality must be strictly adhered to.

Elkus v. Elkus (page 435)

Non-custodial father was considered to be equal to those of the custodial mother.

The primary caretaker is presumed to have custody of the child and the court should seek to maintain the status quo.

Primary Custodian – The person who has legal custody.

Primary Caretaker – The person who actually cares for the child.

State ex rel. Watts v. Watts (page 445)

Sexual stereotypes should not control how a child's custody is determined regardless of whether the child is in its tender years.

Husbands Who Keep House and Fathers Who Care for Children

Pfohl v. Pfohl (page 451)

The common law theory that a man should support his wife is completely archaic and is replaced by the question of whether one party has the means to pay and the other has the need to receive.

FS § 61.08 - Adultery is a consideration on the award of alimony.

Florida Case law permits the Judge to consider misconduct in general when determining alimony.

Interference in Marriage

Gates v. Foley (page 478)

Common law rule regarding loss of consortium replaced with the rule that both a husband and a wife could seek loss of consortium damages.

This case is often cited as being authority for the partnership concept of marriage, but Florida requires marriage plus business for a partnership to be found.

State Control Over Entry into and Exit from Marriage

Freedom to Marry as a Fundamental Human Right

Loving v. Virginia (page 484)

This case is cited for the concept that there is a fundamental right to marry.

State Efforts to Limit Marriage

Form Requirements: Mandamus

F.A. Marriage License (page 497)

Even the mentally handicapped have a fundamental right to marry, but the state does have an interest in restricting marriages of the mentally ill in certain circumstances.

Because the right to marry is fundamental, a person who does not have the capacity to contract may still have the capacity to marry (compare with the capacity to execute a will).

FS § 744.3215(4)(c) – The guardian of a mentally incompetent person has standing to sue for divorce and may defend against divorce.

Annulment

Wilkins v. Zelichowiski (page 502)

The falsification of age in the procurement of a marriage license is illegal, but it does not invalidate the marriage because it is merely a directory requirement, not a mandatory one.

Directory laws – are directed to an official.

Mandatory laws – mandate the actions and conduct of the people.

Comments

FS § 743.01 – a minor is emancipated upon marriage even if later divorced, annulled or widowed.

Bilowit v. Dolitsky (page 506)

Fraud must go to the essentials of the marriage to be grounds for annulment.

Kober v. Kober

Active belief in the Nazi ideal, and adherence to its anti-Semitic beliefs, may be regarded as mental illness pre-dating the marriage and is therefore grounds for an annulment.

Prisoner's Marriage

In re Carrafa (page 517)

Even a prisoner has a fundamental right to marry which may not be restricted by the state even thought the state may restrict conjugal and non-conjugal visits by the spouse.

Turner v. Safley

There is a fundamental right for prisoners to marry, but there is no fundamental right for conjugal visits.

Mental Competence

Larson v. Larson (page 524)

Capacity necessary for marriage means that the party understands the nature, effect, duties and obligations of the marriage contract being entered into.

There is a presumption of sanity.

Comments

FS § 61.052(b) – An incompetent must be divorced under the incompetent section of the code, not the irretrievably broken section.

Incestuous Marriage

Israel v. Allen (page 528)

State restrictions against adoptive brother/sister marriage were invalidated as against the fundamental right to marry because the state's concern about incestuous marriages was connected with the physical detriment of the offspring.

In re MEW and MLB (page 530)

State restrictions against adoptive brother/sister marriage were not an invalid restriction against the fundamental right to marry because the state's concern about incestuous marriages was based on the state's concern for the harmony of the home.

In re May's Estate

Normally, a marriage that is valid in one state is valid in every state unless it is abhorrent to the local jurisdiction. Sometimes, a marriage that would be normally abhorrent may still be considered to be valid in certain circumstances.

Sex

M.T. v. J.T. (page 537)

A person who procures a sex change operation for their same sex partner may not use that persons sex as a defense to marriage.

Baehr v. Lewin (page 543)

This is the Hawaii same sex marriage case which resulted in the enactment of the Defense of Marriage Act which says that no state must recognize a same sex marriage of another state.

Divorce: The Limits of State Control

"Pure" no-fault Reasoning and Its Consequences for Distribution of Assets

In re Marriage of Williams (page 594)

In a pure no-fault state, even an adulterous spouse may be awarded alimony because fault is eliminated from all decisions.

Iowa is the only state that has retained pure no-fault divorce.

Lingering Concepts of Fault

McClelland v. McClelland (page 603)

In a no-fault state like Florida, although fault is not grounds for divorce, it can be examined to determine if a marriage is actually irretrievable broken.

Also remember Ryan v. Ryan for concept that fault may be used to determine alimony and support payments.

Comments

Many courts will award a nominal award of alimony as a means of retaining jurisdiction because a zero alimony award is not modifiable.

The traditional defenses of collusion, contrivance, and condoneation have been abolished by statute in Florida.

Nardone v. Nardone

Court determined that a husband allowing his wife's boyfriend to move into the bedroom while he slept on the couch was a contrivance but granted divorce regardless.

Comments

Condonation occurs if two spouses continue to have intercourse after the behavior complained of has occurred.

Controlling Divorce and Post-Divorce Life through Alimony

Lepis v. Lepis (page 627)

A settlement agreement that is incorporated into a divorce decree loses its contractual nature and becomes subject to judicial modification. Neither party will be able to see contract remedies.

This can be avoided by not incorporating the settlement agreement into the divorce decree, but then the court cannot use its contempt power to enforce the agreement.

Gottsegen v. Gottsegen

A court cannot regulate social conduct of an individual so a cohabitation restriction that has been incorporated into a divorce decree is unenforceable by the court.

A Florida court may determine that the cohabitation substantially effects the financial situation of the spouse and therefore change the alimony.

Children: Raising the Next Generation

Establishing Parenthood

Children Born to Unmarried Woman

Trimble v. Gordon (page 743)

Illegitimate children may not be discriminated against when determining support.

Lalli v. Lalli

A state statute that required a decree of paternity during the lifetime of the alleged father was not invalidated because the state's interest was in avoiding fraud, not in discriminating against the illegitimate.

Stanley v. Illinois

State statute presuming unwed fathers to be unfit parents was declared unconstitutional.

Quilloin v. Walcott

A state statute requiring only the mother's consent for adoption when the child is illegitimate was upheld by the Supreme Court.

Children Born to a Married or Cohabiting Women

Michael H. v. Gerald D. (page 784)

A child born to a woman who is married is presumed to be the child of that marriage.

FS § 742.17(4) – A child conceived from eggs or sperm of a deceased person is not an heir for the purpose of intestate succession if the donor was dead prior to insemination.

In re Marriage of Adams

A husband must consent to the artificial insemination of his spouse.

FS § 742.11 – A husband's consent must be in writing.

Commercial Production of Children

In re Adoption of Baby Girl L.J. (page 823)

Payment for surrogating services were found to be o.k., but may be the subjected to the will of the Legislature.

Why are some things that o.k. for a woman to do with her body, but not others (i.e. abortion versus prostitution)?

Child Custody

Controlling Discretion Through Presumptions

Dinkel v. Dinkel (page 831)

"Best interests of the Child" is the test for determining custody of a child and should not be over turned unless there is a showing of abuse of discretion by the chancellor.

Boroff v. Boroff (page 833)

Basing the decision of custody of a child on matters of gender and social cast is an abuse of discretion.

Painter v. Painter

The "Best interests of the Child" standard is usually determined by a judge exercising social values.

Roe V. Roe

Is the standard actually "Best interest of the Child" or "Lease detrimental to the child."

MP v. SP

Both parents were abhorrent choices, but mother retained custody because she was the lesser of the two evils.

Deciding Not to Decide: Joint Custody

Mayer v. Mayer (page 891)

FS § 61.13(2)(a) – Shared parental responsibility is given unless there is some other reason as to why it should not.

Comments

The legislative purpose behind shared responsibility is that it keeps the child and parents connected, makes parents responsible for the care and well being of the child and the parents are less likely to skip out on support.

Shared responsibility does not necessarily require joint custody.

Problems Caused by Foreign Law and Our Federal System

Residency Requirements for Divorce

Sosna v. Iowa (page 975)

A state has an interest in the marital relationship therefore it may regulate divorce.

Domicile is not a constitutional due process requirement but is instead a requirement for constitutional full faith and credit between sister states.

Full Faith and Credit and Comity

Domestic Cases

Williams v. North Carolina [I] (page 987)

A valid divorce in one state must be recognized by every state under the full faith and credit clause of the constitution.

Williams v. North Carolina [II] (page 997)

A state may re-examine whether the domicile requirement has been met when deciding whether to grant full faith and credit of a sister state's judgement.

Sherrer v. Sherrer (page 1007)

If the subject of domicile is litigated in a bilateral proceeding it will be considered res judicata.

Comments (page 1010)

Jurisdiction – Does the court have the power to hear and decide the case.

Venue – Where, within the jurisdiction, shall the case be heard.

Ex Parte divorce – Only one party, either in person or by attorney, is present at the divorce.

Bilateral divorce – Both parties, either in person or by attorney, is present at the divorce.

Wheat v. Wheat (page 1014)

Arkansas allows for a divorce without domicile so long as the residency requirement is met. An Arkansas divorce decree which does not meet the domicile requirement, however, may not be accepted by sister states under full faith and credit.

Estin v. Estin (page 1021)

A Nevada divorce was granted full faith and credit for the purpose of determining status but not for the determination of a New York separation award.

This case stands for the divisible or bifurcated divorce in which the status of marriage is ended but property and support rights are not.

Foreign Cases

Hyde v. Hyde (page 1030)

Recognition of a Dominican Republic bilateral divorce under comity is discretionary.

Yoder v. Yoder (page 1033)

Whether a court will grant comity is usually decided using the Hilton v. Guyot standard: Comity is usually granted where there has been an opportunity for a full and fair trial before a court of competent jurisdiction in a proceeding which provides due process to the parties under a system of jurisprudence likely to secure an impartial administration of justice and there is no showing of prejudice.

Comments

It is very rare for American judgments to be granted comity by foreign courts because of the requirement of reciprocity.

Another problem is the determination of what the law in the foreign jurisdiction really is.

A case that is granted comity shall be heard upon appeal, not as a new trial.

Child Custody

Respect for Another State's Decree

May v. Anderson (page 1040)

The court used the Estin bifurcation to determine that a Wisconsin decree was valid for status, but not for custody because a parents custody rights could not be determined in an ex parte decision.

Palm v. Superior Court (page 1045)

UCCJA – Uniform Child Custody Jurisdiction Act

The UCCJA gives jurisdiction to the child's home state and to any state with significant connection to the child. If a proceeding has been started in one state, however, the other should not exercise its jurisdiction.

Minimum Contacts for Personal Jurisdiction

Kulko v. Superior Court (page 1080)

Court found that CA lacked jurisdiction over the ex-husband because it did not have minimum contacts.

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